Advice: Adoption After Separation

My partner and I filed for a civil union in New Jersey two years ago. We had been together for three years prior to this, and in 2009 she gave birth to our first child. My name is on the birth certificate and the baby has my last name. However, we never got around to doing the adoption. Earlier this year our relationship fell apart and we are now living separately. She won’t let me see my child and claims I don’t have a right to adopt her. What can I do?

–The other parent

* * *

Dear Other:

There are a lot of issues that effect your situation, including emerging and sometimes conflicting case law. In essence, the fact that you can put your name on the birth certificate is a testament to the advancement of our rights and recognition as lesbian parents—but there are still obstacles. The presence of your name on the birth certificate is not dispositive, and as your partner is contesting, without judicial intervention, you will most likely not be given parental rights. Parental rights, of course, are not necessary to have visitation rights, and the best interests of the child are always paramount in these considerations.

Conversely, when a child is born to a heterosexual married couple, it is automatically presumed to be their child and the biological mother would need to prove otherwise if she contested parental rights. Similarly, courts routinely believe that a relationship with the child’s father is in the best interest of the child and it is very hard to sever parental rights.

Going into court so that strangers can decide the fate of your family is a hardship for anyone, and having to deal with the inequities that LGBT families unfortunately still face in this legal system only makes it more difficult. Perhaps your ex-partner would be willing to sit down in mediation to try to resolve this conflict.

This is a cautionary tale to all of us: we need to make sure we take the extra steps to protect ourselves and our families until the law catches up. I wish you the best.